I have an appeal due in two days where appellant has raised factual and legal sufficiency questions. However, on his factual suficiency he has not raised which element the state failed to prove.

1. Does this mean that I have to show all elements or does this mean he has not properly raised the issue? (I suspect he hasn't properly raised the issue but I don't know how to reply to it in my brief.

2. Quick facts - agg sx. victim recanted on stand and prior to trial, state called victim and impeached with prior statements - court properly held it as impeachment testimony only gave limiting instruction and put limiting instruction in charge, state provided outcry witness (also said vic. recanted), 2 medical witnesses w physical evedence of penatration (No hymen on 9 year old) and statements for medical diagnosis, and medical testimony from her counselor also admitted for medical diagnosis. Defense arguement is this all becomes evidence for impeachment only and nullifys all testimony not real evidence and can't support the corpus delecti of the case. My arguement - it all comes in as exceptions to hearsay thus it is evidence w/ probitive value.

quick help apprieciated!

How did he raise it without telling you what elements the facts were insufficient to prove?

Texas Rules of Appellate Procedure, Rule 38.1(h) states, �The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.�

If he "he has not raised which element the state failed to prove" my first line of defense would be to state that he has failed to present anything for review. For factual sufficiency he should have at least offered an analysis that established that there was no evidence to prove one or more elements, or that the contrary evidence as to that element was so overwhelming as to make the verdict manifestly unjust. Without one or the other, I find it har dto believe he's actually raised the issue.

[This message was edited by Wes Mau on 04-28-05 at .]

Gallegos, 76 S.W.3d at 228 seems to support your first argument. Hearsay admitted merely to impeach live testimony will not suffice to prove the truth of the matter (previously) asserted. Hearsay admissible under 803(4) or 38.072, however, would seem to have probative value. See e.g., Poindexter, 153 S.W.3d at 409, fn. 23; Beckham, 29 S.W.3d 148.

Wes,

His arguement is this - We called a witness merely to impeach her. The out of court witness who repudiates that statement under oath, in Court is not sufficient to sustain a conviction, and therefore the evidence, both legally and factually is insufficient to support the verdict.

As for authorities - he cites Pruitt 770 SW2d 909 for we can't impeach our own witness merely to get inadmissable hearsay before a jury. And then mainly Hernandez v. State 750 SW2d 902 where the victim recanted, impeached w/ inadmissable hearsay of another witness, the defendant confessed and the court found that without the inadmissable hearsay there was no corpus delecti to establish a crime - Hernandez v State 750 S.W.2d 902. (Of course that line of opinions only go to proving up a confession which we did not have)

Hey, I may have found his factual insufficency arguement at the end of the darn brief -- "The only evidence pointing to appellant in this entire case consisted of the prior inconsistant, un-sworn statements of the alledged victim . . . Her prior inconsistant statements constitute the only evidence linking appellant to the allegations . . . no evidence of guilt.

So the only fact I should be showing the statements id'ing the defendant. Got it - I hope.